A further issue arose in R (on the application of Loader) v Rother District Council (see PP 2015/121). The local planning authority (“LPA”) had granted planning permission for the redevelopment of a site (“the application site”) of about 0.7ha of open space in an urban area then housing an existing bowls club. The application site comprised two outdoor bowling greens, a pavilion, a clubhouse and an indoor bowling rink.
Following works of demolition, the redevelopment was intended to provide 39 private sheltered apartments for the elderly, a new clubhouse/pavilion, an indoor bowling rink and one outside bowling green. The application site was listed as an asset of community value (“ACV”) under Part 5 Chapter 3 of the Localism Act 2011 (“the Act”) and the Assets of Community Value (England) Regulation 2012.
(The ACV scheme enables parishes and community organizations – including neighbourhood forums – to nominate local assets to their local authority to be included on its statutory list of assets of community value. (“Assets” for this purpose means land and other buildings.) In such event, the local authority has eight weeks to make a judgment about whether the asset meets the definition set out in section 88 of the Act, or whether it falls into one of the excluded categories. The effect of listing is that, generally speaking, an owner intending to sell the asset must give notice to the local authority. A community interest group then has six weeks in which to ask to be treated as a potential bidder. If it does so, the sale cannot take place for six months.)
From time to time, it will inevitably be necessary for a LPA to consider to what extent such a listing is capable of being a material consideration in the determination of a planning application. Most certainly, the non-statutory guidance on ACVs issued by the DCLG states: “It is open to the local planning authority to decide whether listing as an ACV is a material consideration, if an application for a change of use is submitted considering all of the circumstances of the case”. There appears, however, to be little or no case law at present.
In Loader, the claimant had separately contended that the committee report had dealt with the listing of the application site as an ACV in a significantly misleading way. While the court rejected that submission, the judge accepted – as the claimant herself did – that it was entirely appropriate for the committee report to deal with the listing of the application site as a material consideration.
John Martin
